With a historic ruling of the Court of Bergamo (No. 951 of November 6, 2025), A judge of merit recognized for the first time in Italy the right to compensation for moral harm suffered by an employee, the victim of retaliatory acts by the employer (a public body).
The facts of the ruling
The employee's first reports date back to 2018, when she first reported internally, then later also to ANAC, a series of irregularities related to the provision of food stamps, shift work allowances and study permits. Subsequently, in July 2019, together with another colleague, he reported other offenses to the Guardia di Finanza related to requests for co-financing and irregularities in the criteria for evaluating performance and in the payment of productivity premiums.
Following these complaints, his identity as a whistleblower was revealed and from that moment on he began to suffer intimidation, insults, threats and verbal attacks from colleagues and superiors. In addition, from 2020 she began to be decommissioned, to receive unjustifiably negative performance evaluations, to undergo two disciplinary proceedings and to be assigned to tasks for which she was not provided with adequate equipment.
For all these reasons, the lady presented a Bullying complaint and a application for compensation for biological, moral, existential and professional harm.
The recognition of the qualification of 'whistleblower' in the old discipline
On the merits, the Court of Bergamo in the Labor Section recognizes the qualification of “whistleblower” for the employee, despite the fact that she was also a Unitary Trade Union Representative (RSU) and, therefore, her position had to be protected by art. 54 bis of Legislative Decree 165/2011.
The article mentioned above, now repealed by Legislative Decree 24/2023, provided that”the public employee who, in the interest of the integrity of the public administration, reports illegal conduct that he has become aware of because of his employment relationship cannot be sanctioned, decommissioned, dismissed, transferred or subjected to another organizational measure having negative effects, direct or indirect, on the working conditions determined by the report”.
Such protections for the whistleblower were excluded only in the event of an assessment, by a first-instance judgment, of the same criminal liability for slander or defamation. Furthermore, both in the legislative decree repealed today and in the one currently in force, the burden of proof is reversed, so It is the employer's responsibility to prove that the discriminatory or retaliatory measures have motivations that do not concern the report. If, as in the present case, all this is not adequately demonstrated, the retaliatory acts adopted are null and void.
After ascertaining the violation, by the employer, of art. 2087 of the Italian Civil Code for allowing the maintenance of a stressful work environment, a source of stress and physical and mental wear and tear, the Court of Bergamo proceeds to quantify the damage suffered.
Non-pecuniary damage
Precisely this passage represents aAbsolute news in the Italian legal landscape, as for the first time a judge of merit recognizes the compensability for moral harm to a whistleblower.
The ruling is primarily concerned with retracing the evolution of case law in the matter of non-pecuniary damage:
- it is compensable when it is the expression of a serious injury to a constitutional right, for which mere annoyances or inconvenience are not compensable;
- it is a macro-category that encompasses various defining sub-types, such as biological damage, existential damage, terminal damage, etc...;
- Within non-pecuniary damage, a distinction is made between:
- the dynamic-relational component, that is, the prejudice suffered by the injured person in his relationship with others, which prevents him from carrying out normal activities of daily life and which causes him to deteriorate his existence (c.d. biological damage), measurable and susceptible to forensic medical evaluation;
- The component of inner subjective suffering, that is, the prejudice suffered by the injured person in his relationship with himself, in the inner sphere that causes him intense internal suffering, shame, fear, disrespect, pain or mental suffering (moral harm).
The moral harm of the whistleblower
In the present case The judge does not recognize the biological damage, since the appellant's discomfort and suffering did not result in a certified and documented pathology, but recognizes, For the first time in Italy, The moral harm of the whistleblower, quantifying it in an equitable way.
As the ruling specifies:”During the trial, the hardship of the work environment in which the appellant had to work, the profound sense of malaise, isolation, marginalization and humiliation that she must have experienced in the awareness of working with colleagues who did not miss an opportunity to express, even abruptly, if not aggressively, hostility and resentment against her for starting a series of initiatives to control the disbursements of which, in previous years, they had been beneficiaries”.
Despite the fact that it is a first instance sentence, this represents an important first step in the recognition of compensation for non-pecuniary and non-biological damages.
From now on, therefore, it will no longer be necessary to demonstrate that the retaliatory behavior against the whistleblower has caused a medically ascertained pathological state, and may constitute an employer's responsibility even if the above behaviors have caused feelings of fear, despair, shame, etc.
The importance of proper management of the whistleblowing channel
The judgment examined requires some important reflections regarding the institution of whistleblowing.
As is well known, Legislative Decree 24/2023, which transposed the European Directive 2019/1937, obliges all companies with more than 50 employees to have whistleblowing systems that comply with European legislation.
Briefly summarizing, the text:
- provides for the establishment of external (ANAC) and internal reporting channels (which can also be managed by an external entity with independence, impartiality and confidentiality in the management of reports);
- guarantees protection measures for the whistleblower against possible retaliation (such as dismissal, decommissioning, disciplinary sanctions, etc...)
- sets precise deadlines for managing the report and the subsequent investigation, which may in turn lead to the initiation of an internal investigation.
For this reason, in order not to incur ANAC sanctions (which can be up to 50,000 euros) and damages sentences of the whistleblower (as in the case of the judgment in question), It is essential to be supported by experienced personnel who, on the one hand, know how to ensure the correct management of the report and all the protections that the law grants to the whistleblower, no matter what technical skills to properly conduct business investigations that may relate to unethical behavior, toxic work environment, discrimination and harassment in the workplace.
